UN Special Rapporteur on the Right to Food | 21 July 2009
Crisis into opportunity: reinforcing multilateralism
2nd report to the UN Human Rights Council on the world food crisis, presented on 17 September 2009 Excerpt: Disciplining large-scale land acquisitions or leases 19. In the past three to four years, private investors and Governments have shown a growing interest in the acquisition or long-term lease of large portions of farmland, mostly in the developing world and particularly in sub-Saharan Africa and Latin America, where underused arable land exists in large quantities. The development of large-scale land leases or acquisitions can be explained by (a) the rush towards the production of agrofuels, encouraged by fiscal incentives and subsidies in developed countries; (b) population growth and urbanization, combined with the exhaustion of natural resources in certain countries, where large-scale land acquisitions are seen as a means to achieve long-term food security; (c) increased demand for certain raw commodities from tropical countries, particularly fibre and other wood products; and (d) the subsidies expected for carbon storage through plantation and avoided deforestation. While this phenomenon is not entirely new, it has accelerated since the onset of the global food crisis. A number of resource-poor but cash-rich countries have turned to large-scale acquisitions or rent of land in order to achieve food security. Private investors, including large investment funds, have also acquired land, sometimes for merely speculative motives, with the conviction that the price of arable land will continue to rise in the future. 20. There are opportunities in this development. For host States, the arrival of investment has the potential of creating employment, both on and off the farm (in associated processing industries, for instance). It may lead to transfers of technologies. It could improve the access of local producers to markets at domestic, regional and international levels. It could increase public revenues, through taxation and export duties. For countries purchasing or leasing land abroad, this implies greater food security, since they will be less dependent on international markets to acquire the food they need to feed their populations - although the risks of lower productivity in agriculture in subtropical regions owing to climate change and, in the future, higher freight costs, could partially offset this advantage. 21. Yet, the human rights challenges are real. In June 2009, the Special Rapporteur put forward a set of core principles and measures in order to frame the discussion on large-scale land acquisitions or leases in human rights terms. These principles are based on the right to food, but they also aim to ensure the respect of agricultural workers’ rights and to protect land users from eviction that do not comply with certain conditions. They also call for the respect of the right to self-determination of peoples and on the right to development. They may be summarized as follows: (a) Negotiations leading to investment agreements should be conducted in full transparency, with the participation of the local communities, whose access to land and other productive resources could be affected as a result of the arrival of an investor; (b) In principle, any shift in land use may only take place with the free, prior and informed consent of the local communities concerned. This is particularly important for indigenous communities, in view of the discrimination and marginalization that they have historically endured. Forced evictions should only be allowed in the most exceptional circumstances, when in accordance with the locally applicable legislation, when they are justified as necessary for the general welfare, and when they are accompanied by adequate compensation and alternative resettlement or access to productive land; (c) In order to ensure that the rights of the local communities will be safeguarded at all times, States should adopt legislation protecting those rights and specifying in detail the cases in which shifts in land use or evictions are allowed, as well as the procedure to be followed. Moreover, States should assist local communities in obtaining collective registration of the land they use, in order to ensure that their rights will enjoy full judicial protection. Such legislation should be designed in accordance with the Basic principles and guidelines on development-based evictions and displacement, submitted in 2007 by the Special Rapporteur on adequate housing as a component of the right to an adequate standard of living (A/HRC/4/18, annex I), and with general comment No. 7 (1997) of the Committee on Economic, Social and Cultural Rights on the right to adequate housing (art. 11.1): forced evictions;14 (d) Investment agreement revenues should be used for the benefit of the local population. Depending on the circumstances, arrangements under which the foreign investor grants access to credit and improved technologies for contract farming, or precluding the possibility of buying at predefined prices, a portion of the crops produced, may be preferable to long-term leases of land or land purchases; (e) Host States and investors should establish and promote farming systems that are sufficiently labour-intensive to contribute to job creation and to the strengthening of local livelihood options; (f) Host States and investors should cooperate in identifying ways to ensure that the modes of agricultural production respect the environment; (g) Whatever the content of the arrangement, it is essential that the obligations of the investor are defined in clear terms, and that these obligations are enforceable, for instance by the inclusion of predefined sanctions in the event of non-compliance; (h) In order to ensure that investor agreements do not result in greater food insecurity for the local population, particularly as the result of increased dependence on international markets or food aid in a context of higher prices for agricultural commodities, the agreements should include a clause providing that a minimum percentage of the crops produced be sold on local markets, and that this percentage may be increased, in proportions to be agreed in advance, if the price of food commodities on international markets reaches a certain level; (i) Impact assessments should be conducted prior to the completion of negotiations in order to highlight the consequences of the investment on the enjoyment of the right to food through: (i) local employment and incomes, disaggregated by gender and, where applicable, by ethnic group; (ii) access to productive resources of the local communities, including pastoralists or itinerant farmers; (iii) the arrival of new technologies and investments in infrastructure; (iv) the environment, including soil depletion, the use of water resources and genetic erosion; and (v) access, availability and adequacy of food; (j) Indigenous peoples have been granted specific forms of protection of their rights on land under international law. States shall consult and cooperate in good faith with the indigenous peoples concerned in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources. (k) Waged agricultural workers should be provided with adequate protection, and their fundamental human and labour rights should be stipulated in legislation and enforced in practice, consistent with the applicable instruments of the International Labour Organization (ILO). 22. The principles and measures proposed are not simply a restatement of the human rights norms on which they are grounded; they are practical as well. They seek to assist both investors and host Governments in the negotiation and implementation of large-scale land leases or acquisitions, in order to ensure that such investments are balanced, work for the benefit of the population in the host country and are conducive to sustainable development. In this area too, a multilateral approach would be preferable to unilateral action by the States concerned. A multilateral framework would not only improve the protection of the human rights of the local population concerned; it could also avoid beggar-thy-neighbour policies, with countries competing against each other for foreign direct investment and thus lowering the requirements imposed on foreign investors. It could also provide greater legal certainty for investors and shield them against the risk of reputational losses if they comply with the principles. It is the hope of the Special Rapporteur that these principles will help to achieve a consensus on the establishment of such a framework.Disciplining large-scale land acquisitions or leases
19. In the past three to four years, private investors and Governments have shown a growing interest in the acquisition or long-term lease of large portions of farmland, mostly in the developing world and particularly in sub-Saharan Africa and Latin America, where underused arable land exists in large quantities. The development of large-scale land leases or acquisitions can be explained by (a) the rush towards the production of agrofuels, encouraged by fiscal incentives and subsidies in developed countries; (b) population growth and urbanization, combined with the exhaustion of natural resources in certain countries, where large-scale land acquisitions are seen as a means to achieve long-term food security; (c) increased demand for certain raw commodities from tropical countries, particularly fibre and other wood products; and (d) the subsidies expected for carbon storage through plantation and avoided deforestation.
While this phenomenon is not entirely new, it has accelerated since the onset of the global food crisis. A number of resource-poor but cash-rich countries have turned to large-scale acquisitions or rent of land in order to achieve food security. Private investors, including large investment funds, have also acquired land, sometimes for merely speculative motives, with the conviction that the price of arable land will continue to rise in the future.
20. There are opportunities in this development. For host States, the arrival of investment has the potential of creating employment, both on and off the farm (in associated processing industries, for instance). It may lead to transfers of technologies. It could improve the access of local producers to markets at domestic, regional and international levels. It could increase public revenues, through taxation and export duties. For countries purchasing or leasing land abroad, this implies greater food security, since they will be less dependent on international markets to acquire the food they need to feed their populations - although the risks of lower productivity in agriculture in subtropical regions owing to climate change and, in the future, higher freight costs, could partially offset this advantage.
21. Yet, the human rights challenges are real. In June 2009, the Special Rapporteur put forward a set of core principles and measures in order to frame the discussion on large-scale land acquisitions or leases in human rights terms. These principles are based on the right to food, but they also aim to ensure the respect of agricultural workers’ rights and to protect land users from eviction that do not comply with certain conditions. They also call for the respect of the right to self-determination of peoples and on the right to development. They may be summarized as follows:
(a) Negotiations leading to investment agreements should be conducted in full transparency, with the participation of the local communities, whose access to land and other productive resources could be affected as a result of the arrival of an investor;
(b) In principle, any shift in land use may only take place with the free, prior and informed consent of the local communities concerned. This is particularly important for indigenous communities, in view of the discrimination and marginalization that they have historically endured. Forced evictions should only be allowed in the most exceptional circumstances, when in accordance with the locally applicable legislation, when they are justified as necessary for the general welfare, and when they are accompanied by adequate compensation and alternative resettlement or access to productive land;
(c) In order to ensure that the rights of the local communities will be safeguarded at all times, States should adopt legislation protecting those rights and specifying in detail the cases in which shifts in land use or evictions are allowed, as well as the procedure to be followed. Moreover, States should assist local communities in obtaining collective registration of the land they use, in order to ensure that their rights will enjoy full judicial protection. Such legislation should be designed in accordance with the Basic principles and guidelines on development-based evictions and displacement, submitted in 2007 by the Special Rapporteur on adequate housing as a component of the right to an adequate standard of living (A/HRC/4/18, annex I), and with general comment No. 7 (1997) of the Committee on Economic, Social and Cultural Rights on the right to adequate housing (art. 11.1): forced evictions;14
(d) Investment agreement revenues should be used for the benefit of the local population. Depending on the circumstances, arrangements under which the foreign investor grants access to credit and improved technologies for contract farming, or precluding the possibility of buying at predefined prices, a portion of the crops produced, may be preferable to long-term leases of land or land purchases;
(e) Host States and investors should establish and promote farming systems that are sufficiently labour-intensive to contribute to job creation and to the strengthening of local livelihood options;
(f) Host States and investors should cooperate in identifying ways to ensure that the modes of agricultural production respect the environment;
(g) Whatever the content of the arrangement, it is essential that the obligations of the investor are defined in clear terms, and that these obligations are enforceable, for instance by the inclusion of predefined sanctions in the event of non-compliance;
(h) In order to ensure that investor agreements do not result in greater food insecurity for the local population, particularly as the result of increased dependence on international markets or food aid in a context of higher prices for agricultural commodities, the agreements should include a clause providing that a minimum percentage of the crops produced be sold on local markets, and that this percentage may be increased, in proportions to be agreed in advance, if the price of food commodities on international markets reaches a certain level;
(i) Impact assessments should be conducted prior to the completion of negotiations in order to highlight the consequences of the investment on the enjoyment of the right to food through: (i) local employment and incomes, disaggregated by gender and, where applicable, by ethnic group; (ii) access to productive resources of the local communities, including pastoralists or itinerant farmers; (iii) the arrival of new technologies and investments in infrastructure; (iv) the environment, including soil depletion, the use of water resources and genetic erosion; and (v) access, availability and adequacy of food;
(j) Indigenous peoples have been granted specific forms of protection of their rights on land under international law. States shall consult and cooperate in good faith with the indigenous peoples concerned in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources;
(k) Waged agricultural workers should be provided with adequate protection, and their fundamental human and labour rights should be stipulated in legislation and enforced in practice, consistent with the applicable instruments of the International Labour Organization (ILO).
22. The principles and measures proposed are not simply a restatement of the human rights norms on which they are grounded; they are practical as well. They seek to assist both investors and host Governments in the negotiation and implementation of large-scale land leases or acquisitions, in order to ensure that such investments are balanced, work for the benefit of the population in the host country and are conducive to sustainable development. In this area too, a multilateral approach would be preferable to unilateral action by the States concerned. A multilateral framework would not only improve the protection of the human rights of the local population concerned; it could also avoid beggar-thy-neighbour policies, with countries competing against each other for foreign direct investment and thus lowering the requirements imposed on foreign investors. It could also provide greater legal certainty for investors and shield them against the risk of reputational losses if they comply with the principles. It is the hope of the Special Rapporteur that these principles will help to achieve a consensus on the establishment of such a framework.
